Asylum

A person who has been persecuted or has a well-founded fear of being persecuted in his or her home country on account of race, social group, religion, nationality, or political views may qualify for refugee or asylum status.  A person who can prove that it is more likely than not that they will be persecuted if returned to their home country may qualfy for withholding of removal.

A comprehensive resource on the rules governing asylum law in the Western United States is the Ninth Circuit Court of Appeals' Asylum Handbook, Asylum Precedent in the Ninth Circuit.

The definition of refugee and asylee is the same except for the location of the person applying. A person granted protective status who is outside of the United States is considered a refugee, while a person granted the same protective status from within the United States is considered an asylee. And the last of these remedies, withholding of removal, precludes the United States from returning a person to his or her home country, but does not preclude removal to a third country willing to accept that person.

The 1967 United Nations Convention and Protocol Relating to the Status of Refugees is the basis of United States asylum and refugee law. Although the United States signed this treaty, many United States courts have held that it is not self-executing and does not itself confer rights. Rather, the treaty provides only guidelines for implementing domestic laws. But the Immigration and Nationality Act borrowed the definition of refugee from the 1967 treaty:

Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unwilling or unable to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The specific United States rules governing refugees and asylees are found in case law. The Immigration and Nationality Act provides some rules governing the grant of relief from persecution, but it provides only general rules and does not list the specific requirements for receiving one of these available remedies.

Asylum And Refugee Status

Persons seeking asylum must show either that they suffered past persecution in their home country or that they have a well-founded fear of suffering future persecution should they be returned to their home country. The persecution must be based on at least one of five grounds:

1. Race
2. Religion
3. Nationality
4. Social Group
5. Political Views

It does not matter whether the person or group inflicting persecution harbors a subjective punitive or malignant intent. Even if the persecutor believes he or she is genuinely helping the victim, but nonetheless inflicts harm, that harm may well be persecution.

Persecution

Persecution is the infliction of suffering or harm upon those who differ in a way that is regarded as offensive. Whether a type of harm is persecution turns on what a reasonable person would deem offensive. This part of the analysis is objective. Even if a person feels persecuted, the acts giving rise to that perception will not be deemed persecution unless the applicant shows that a reasonable person would feel the same way under similar circumstances.

The types of suffering or harm that constitute persecution differ by case. But every instance of suffering or harm inflicted on an individual bears cumulatively on the determination of persecution. Some types of suffering or harm courts have recognized include:

• Torture
• Physical abuse if it is sufficiently severe
• Threats to life or freedom
• Deliberate imposition of substantial economic disadvantage
• Involuntary sterilization
• Arbitrary interference with a person's privacy, family, home or correspondence
• Relegation to substandard dwellings
• Exclusion from institutions of higher learning
• Enforced social or civil inactivity
• Denial of a passport
• Constant surveillance
• Pressure to become an informant

Any of these types of suffering or harm are particularly likely to constitute persecution if they are repeated and persistent. But to constitute a valid claim for asylum, the suffering or harm that rises to the level of persecution still must be based on one of the five enumerated grounds and be inflicted by government actors or actors the government is unwilling or unable to control.

Threats to life or freedom always constitute persecution and include:

• Genocide
• Slavery or slave trade
• Killing of individuals, other than as lawful punishment upon conviction in accordance with due process
• Torture and other cruel or inhumane treatment; and
• Prolonged detention without notice of and an opportunity to contest the grounds for the detention

Some types of suffering or harm may only rise to the level of harassment and not constitute persecution. Courts have held that brief periods of confinement unaccompanied by physical mistreatment are not considered a threat to freedom or persecution.

Prosecution also does not usually constitute persecution when it is not based on one of the five enumerated grounds. And prosecution for refusal to comply with compulsory military service will generally not constitute persecution. But some types of prosecution may constitute persecution. These include any prosecution based on one of the five enumerated grounds and any punishment imposed without judicial process.

Additionally, any punishment excessive with respect to the accepted norms of civilized society, or any punishment that violates internationally-accepted norms, or is disproportionate to the crime alleged, may constitute persecution. Punishment actually imposed that is based on one of the five enumerated grounds, but that the government alleges is based on the alleged crime, may be persecution.

Persecutory conduct may have more than one motive, and so long as one motive is based on one of the statutorily enumerated grounds, it satisfies the requirements for asylum. The alien must only demonstrate a reasonable possibility that one of the persecutor's motivations is related to an enumerated ground.

Membership in a Particular Social Group

Persecution on account of membership in a particular social group” within the meaning of the INA to mean “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic[,] . . . one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

In addition to “immutability,” the Board requires that a particular social group have: “(1) social visibility, meaning that members possess characteristics . . . visible and recognizable by others in the native country, . . . (2) be defined with sufficient particularity to avoid indeterminacy, . . . and (3) not be defined exclusively by the fact that its members have been targeted for persecution[.]”  Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009).

The BIA appears to have borrowed the concept of social visibility from the United Nations Commissioner for Refugees (UNHCR).  UNHCR used the concept as an alternative method of analysis of social groups, but the BIA made it a requirement for defining a social group.

Although the social visibility criterion was supposed to serve as an objective test to prevent the ad hoc concocting of social groups, many immigraiton judges and attorneys have interpreted it quite literally as a question of whether a social group's members may be identified by a visual characteristic.
 

Burden of proof

The initial burden of proof is on the applicant to show persecution or a well-founded fear of persecution. Then, this burden shifts to the government and if the government shows that there is little likelihood of future persecution, then the burden shifts back to the applicant to show a likelihood of future persecution. Department of Homeland Security rules provide that where an applicant suffered persecution such that his life or freedom was threatened, it is presumed that his life or freedom would be threatened upon return to his country of origin. And that presumption can only be rebutted by evidence establishing that conditions in the country have changed to such an extent that it is no longer more likely than not that the applicant would be persecuted there.

If the applicant establishes past persecution, he is presumed to have a well-founded fear of persecution. Where an applicant suffered persecution in the past such that the applicant's life or freedom was threatened, it is presumed that the applicant's life or freedom would be threatened upon return to that country. But even if past persecution was not so extreme as to threaten the applicant's life or freedom, it may nevertheless qualify as persecution.

If the Department of Homeland Security successfully rebuts the presumption of a well-founded fear of persecution with evidence of changed country conditions, the application may be denied unless the applicant demonstrates compelling reasons for being unwilling to return to his country which arise out of the severity of the past persecution. Absent a likelihood of future persecution, asylum is warranted only if the applicant demonstrates that in the past he or his family suffered atrocious past persecution.

Credible Evidence After the 2005 REAL ID Act

The 2005 Real ID Act contained provisions specifically targeting the Ninth Circuit Court of Appeals' precedent decisions.  The REAL ID Act instituted more strict evidentiary requirements, but these have only modestly affected the standard.

An asylum officer or immigration judge may grant asylum based on the applicant's testimony alone, but only where the testimony “is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee."

An asylum officer or immigration judge may require other evidence to corroborate otherwise credible testimony “unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”

And in determining whether the applicant has met her burden of proof, the trier of fact may weigh credible testimony along with other evidence of record.

Application Procedures

The first step in applying for asylum or refugee status is to complete USCIS Form.  Asylees should complete USCIS Form I-589, Application for Asylum and for Withholding of Removal (Withholding of Removal is a remedy the applicant should apply for simultaneously and is discussed here).  And refugees should complete USCIS Form I-590.  These forms are available at www.uscis.gov.

Applicants for asylum should provide a short description of the reasons they seek asylum or withholding of deportation in Part C. 7. of the form.  But the forms should be accompanied by a detailed declaration recounting the specific instances of persecution the applicant suffered or fears will be suffered if the applicant returns home.  The declaration is the most important part of the application and must be carefully prepared. It should detail the events constituting persecution chronologically.

Applicants should also include all available relevant corroborating evidence. Corroborating evidence is any documented source that supports the applicant's declaration of events. Applicants should include documented evidence after the declaration and should number each as an exhibit and include an index that briefly describes each document. Sources of documentation may include:

• Letters from friends, relatives, coworkers or any other witness to any of the events complained of
• Medical records and letters from physicians who treated the applicant for any instances of physical abuse
• Medical records and letters from doctors who treated the applicant for psychological trauma resulting from instances of persecution
• A birth certificate, passport, driver's license and identification card and other documents that tend to establish the applicant's date and place of birth
• Leases, deeds, utility bills and other documents that tend to corroborate where the applicant lived
• Payroll and tax records that tend to establish where the applicant worked
• Membership records, identification cards and letters from other members of any political or social group that the applicant claims may have been the basis for any persecution suffered
• Airline tickets, hotel invoices and other documents that may corroborate the applicant's course of travel from his or her home country to a third country or the United States

This list is not exhaustive and is not appropriate to a specific case.  Applicants may not want to include irrelevant documentation, but they may want to include documents not listed above. Which documents are important and which are not depends on the specific case, and applicants should at least have an attorney review a specific case before proceeding. Applicants who cannot afford legal representation may find a legal clinic in their area willing to represent them at no charge. But applicants must consider that a poorly drafted and documented declaration may preclude a meritorious application from appropriate relief.

After filing the appropriate INS Form and Declaration, the INS will schedule an interview with an Asylum Officer who will question the applicant. These interviews may last from 45 minutes to several hours depending on the case and the interviewing Officer. The Asylum Officer has the authority to grant an asylum application, but may not deny one. If the Asylum Officer does not believe that the applicant has met the legal requirements for asylum, the Officer will refer the case the Immigration Court which will set a hearing date.

If the Immigration Court denies the applicant's petition, the order of appeals is to the Board of Immigration Appeals, and then United States Court of Appeals for the Circuit having jurisdiction over the geographical area where the applicant made the petition. If the United States Court of Appeals denies the claim, the United States Supreme Court has the discretion to hear the petition, but is not required to hear it.

Applicants for asylum may not work in the United States while they wait for their interview. However, if an applicant has waited 180 days from the date he or she filed the application and the Immigration Court has not yet heard the petition, that applicant may be eligible to apply for Employment Authorization, INS Form I-765, until the Immigration Court determines the petition. An applicant is immediately eligible to apply for employment authorization upon a grant of asylum.

Withholding Of Removal (Nonrefoulement)

Withholding of Removal (Nonrefoulement in UN treaties) is the remedy that precludes the United States from removing (deporting) a person to the country that persecuted them. While the type of persecution the applicant must show for Nonrefoulement is similar to the showing required for asylum or refugee status, the burden of proof is higher on the applicant seeking to show Nonrefoulement. United States courts imposed this higher proof standard for Nonrefoulement because it is a mandatory remedy, while asylum and refugee status are not. In other words, an applicant for asylum or refugee status may be denied at the discretion of the Asylum Officer or Immigration Court even though the applicant satisfied the standard of proof establishing his or her claim. But neither an Asylum Officer nor an Immigration Court may deny a claim for Nonrefoulement that satisfies the proof requirements.

Applicants for Withholding of Removal must show a threat to life or freedom based on one of the same five grounds required for a showing of asylum, and they must show the same type of government involvement or resignation. But they must show this threat to life or freedom by a clear probability or preponderance.

The application process for Withholding of Removal is the same as that required for Asylum. The applicant should submit INS Form I-589 with a detailed declaration and supporting documentation. Once again, the differences between Withholding of Removal and Asylum are the discretion of granting relief and the burden of proof.

Petitions For Relatives Based on a Grant of Refugee Status or Asylum

Applicants for asylum or refugee status should include all family members on their application. Family members are eligible for derivative asylum or refugee status if the petitioner is granted asylum or refugee status. But those family members should be listed as family members on the initial application. An asylee or refugee may apply for derivative status for a family member by submitting INS Form I-730 Relative Visa Petition.

Acquiring Permanent Residence

Asylees are eligible to apply to adjust status to Lawful Permanent Residency after one year of physical presence in the United States beginning from the date that asylum was granted. The asylee must apply to the INS for permanent residency using INS Form I-485. Lawful Permanent Residency, once granted, is retroactive to a date one year before the date that the adjustment of status was granted. 8 CFR 209.1(a). This allows the asylee to apply for naturalization earlier than if the actual date Lawful Permanent Residency was granted controlled.

Sources For Reports On Country Conditions and Persecution

Human Rights Documentation Exchange
Post Office Box 2327
Austin, Texas 78768
Tel (512) 476-9841
Fax (512) 476-0130

USCIS Asylum Office Resource Information Center
425 I Street NW, ULLICO Building
Washington, DC 20536

International Gay and Lesbian Human Rights Commission
80 Maiden Lane, Suite 1505
New York, NY 10038
Tel (212) 430-6054
Fax (212) 430-6060
e-mail iglhrc@iglhrc.org

Amnesty International USA National Refugee Office
500 Sansome Street, Suite 615
San Francisco, California 94111
Tel (415) 291-0601
Fax (415) 291-8722

Human Rights Watch
Publications Department
Tel (212) 972-8400
Fax (212) 972-0905